90 Tenn. 485 | Tenn. | 1891
The appellants were jointly indicted for the murder of one Clarence G-odale, in Lake County, in April, 1889. Upon their application the venue was changed to Dyer County, where, upon trial, they were found guilty of murder in the first degree, without mitigating circumstances, and sentenced to death.
The facts antecedent to the killing were substantially these: The deceased lived in Lake County, upon the farm of James Harris. The appellants lived in Fulton County, Kentucky, on what is known as Chute Ho.-8 of the Mississippi River. Fulton adjoins Lake County, Tennessee. On Friday before the death of Godale on Tuesday, and in the latter'part of April, 1889, the deceased
So far we have followed the narratives as given by appellants upon the witness-stand. "From a point one mile north of Tiptonville we are able to trace them through the testimony of others. At the point indicated, and upon Monday — -the day before the killing, and the day of their departure in search of Godale — they were met by W. T. Simmons, who rode with them for a short distance in the direction of Tiptonville. They told this witness that Godale had stolen a skiff from them. In response to an opinion expressed by Simmons that if Godale saw them he would give them “the slip or dodge,” they replied “if they got
They were next seen by John Williams, who was asked about Godale. To him they said that “he had borrowed a skiff from them, and when they caught him they would kill the d — d son of a b — k
They next saw a Mr. Bellew, the village blacksmith, who had known them for some years. They asked about Godale, and as to where he lived, and learned from this witness that he lived on the Glass farm, six or seven miles from and south of Tiptonville. To him they said that Godale “had borrowed a skiff from them, and had failed to bring it back; * * * when they caught .up with him that they would kill him; ” or that “if he did not give an account of the skiff they would kill him.”
On the same evening, and about sundown, and in same village, they said to a Mr. Farrar that Godale had stolen' their skiff, “ and if we find him he won’t steal any more skiffs.”
Afterward, as they were riding out of and south of the town, they were again seen by Farrar, who, observing that they -were armed with guns, said to them, “You seem to be fixed, and you are going to take him in, are you?” to which they replied, “If we catch him he will never steal another skiff.” This witness says this was said in rather a jocular manner.
One of appellants was mounted on a mule, the
Appellants were examined as witnesses in their own behalf. They admitted the killing ■. of Godale, but assert that it was accidental. They say that they had no other purpose in pursuing deceased than to disarm and ai’rest him; that for this purpose they halted him in the lane and ordered him to throw the ax over the fence and hold up his arms; that this order had to be repeated three times before he complied; that to compel obedience Nathan Tarver drew his gun on him and cocked it; that when he did throw the ax away and hold his hands up, that Woodville Tarver hitched his mule to the fence and dismounted, and, under direction of Nathan, started toward the deceased with the purpose of searching him to see if he was' armed; that Woodville had gone half - way between Nathan, who remained mounted, and who was holding his cocked gun bearing on deceased, when Woodville’s mule jostled Nathan’s horse, causing the cocked gun to be discharged. There was no evidence to support this
The repeated declarations made by appellants while in pursuit of Godale, that they would kill him, or that he would never steal another skiff, are in antagonism with the idea that they intended no personal violence. They admit that the'y had been advised that if deceased resisted they had no right to arrest him. Yet, with this knowledge, they are not heard to say any thing about arresting him, though they talked to as many as seven persons concerning their pursuit, of him. They made no communication to any Tennessee officer, and though they passed through the county town of Lake County, yet they are not shown to have asked for legal assistance, or inquired for a public officer. In their own proof they do not claim to have informed the deceased that they proposed to arrest him, or that he was charged with any crime. The absence of any effort to secure an officer, and of all declarations either to deceased or others of any purpose to arrest, áre most sig
The appellants deny the statements most injurious. Some effort is made to show that two of these witnesses were not where they say they were when these statements were made to them. The character of none of them has been attacked. The effort to impeach them otherwise appears to merit slight consideration. These witnesses had no interest in the case other than that of every good citizen who desired to see crime punished and the law avenged. The conflict between themselves and appellants has been submitted to a disinterested jury, along with the accidental theory of the shooting set up in testimony of appellants. This jury, by a verdict of murder in the first degree, have found against the truth of the statements of appellants. The record abundantly supports this finding, and we cannot disturb the judgment upon the facts as presented by this transcript. The theory of accidental shooting being discredited, the case presented is one in which a helpless and disarmed man, as shown by the position of his ax, standing with arms upraised in token of surrender, as shown by shot-wounds on under side of left arm, has been mercilessly shot to death. This result was premeditated, if we are to believe the threats of death proven by more than one credible witness.
Some criticism has been made upon the charge of the learned Circuit Judge.
The definition of the various grades of crime
There is no error in this. We understand by It that if the act done was an unlawful act, and the doing of it was directly perilous to human life, and so known, to the wrong-doer, that then there is implied such a high degree of conscious .and -willful recklessness as to amount, to that malignity of heart constituting malice. The result may not have been intended, yet the deliberate .and conscious doing of an act the probable consequence of which was death, amounts to murder .at common law. This is the doctrine of Lee v. State, 1 Cold., 66, and it is fully supported by the ■common law authorities.
“It is not necessary, in order to render the killing murder, that the unlaw'ful act intended would, had it been effected, have been a felony. ‘Thus, in the case of a person wdio gave medicines ■to a v'oman, and of him who put into a woman’s
“ If a person ride a horse known to be used to kick amongst a multitude of people, although he only meant to divert himself, and death ensues in consequence, he will, it is said, be guilty of murder; and if a man, knowing that people are passing along the street, throw a stone likely to create a danger, or shoot over the house or wall with intent to do hurt to people, and some one, in consequence, is killed, it is murder, on account of the previous malice, though not directed against any particular individual; for it is no excuse that the party was not bent on mischief generally; but if the act were done incautiously, it would only be manslaughter. In all these cases the nature of the instrument and the manner of using it, as calculated to produce great bodily harm or not, will vary the offense.” Ibid., 710.
In regard to the rule where death ensues in the performance of a lawful act; the same author says: “ Where death is occasioned by the hand of a party engaged in the performance of a lawful act, it may amount to either murder, manslaughter, or
But upon another ground altogether this charge must be held not to have prejudiced appellants, even if the learned Judge was in error as to the degree of their crime if the killing had been accidental, and under such circumstances as presented by the paragraph of the charge quoted. The juiy were distinctly told that if they believed the gun to have been unintentionally discharged, that then the accused would not be guilty of murder in the first degree, but only of murder in the second degree. Upon this charge the jury have returned a verdict of murder in the first degree, which required that they should be satisfied beyond a
Ilow, then, can it be material to the accused, under such a verdict, whether a killing unintentional was murder in the second degree or manslaughter? If the verdict had been for murder in the second degree, any error in defining or differentiating that offense from one of lower grade would have been material, and might have been prejudicial, and therefore reversible error. To reverse for an error of law, when the verdict demonstrates that the accused could not possibly have been prejudiced by it, would be a technical folly. Williams v. State, 8 Heis., 377; Honeycutt v. State, 8 Bax., 379; Good v. State, 1 Lea, 293; Parham v. State, 10 Lea, 498; State v. Hargrove, 13 Lea, 178; State v. Parham, 13 Lea, 321.
The Court was requested to charge that without a warrant any private person might lawfully pursue and arrest one whom they had reasonable ground to believe guilty of a felony. The provisions contained in our Code at §5868 concerning arrests by pidvate persons apply only to crimes committed in this State. The arrest and detention of fugitives from other States is regulated by wholly different provisions. Code (M. & V.), §§6190, GÍ91.
The requests all involved the erroneous idea that citizens of another State could in this State arrest,